Sentencing; Imposition of lifetime electronic monitoring (LEM) for a CSC I conviction; MCL 750.520b(2)(d) & 750.520n; Ex post facto challenge; Motion for relief from judgment to allow defendant to withdraw pleas; Failure to advise defendant of the LEM consequences of his pleas; MCR 6.508(D); “Good cause”; Actual prejudice

Agreeing with defendant and the prosecution that the imposition of LEM as part of his sentences for his CSC I convictions violated the constitutional ex post facto prohibition, the court remanded for the trial court to correct those sentences by removing the mandatory LEM. But it otherwise affirmed, concluding that the trial court did not abuse its discretion in denying his motion for relief from judgment to allow him to withdraw his pleas to CSC II, as he could not show good cause or actual prejudice. Before 8/28/06, the maximum penalty a defendant could receive for CSC I “was imprisonment for ‘life or any term of years.’” Due to statutory revisions by the Legislature, “a defendant became required to serve a prison sentence and be subject to LEM.” Defendant was charged here based on conduct that “occurred in the 1990s before the LEM provisions became effective.” Thus, sentencing him to LEM based on his CSC I “convictions violated the constitutional ex post facto prohibition because it imposed greater punishment than the law permitted at the time” he committed the crimes. He also argued that he should be allowed to withdraw his pleas to CSC II on the ground that the trial court failed to advise him of the LEM consequences of his pleas. The court disagreed. In a prior appeal, it found that the trial court’s conduct in this regard, under the circumstances of this case, was harmless error. Thus, in the context of the current appeal, he could not establish good cause as to the conduct that the court had “already determined constituted harmless error that did not warrant relief.” As to the actual prejudice requirement, the court determined in the prior appeal “that the trial court substantially complied with the requirements of MCR 6.302(B)(2) and that defendant failed to establish that his pleas were involuntary or that his counsel provided him ineffective assistance in relation to the trial court’s failure to reiterate the LEM requirement for” his CSC II convictions. Thus, he could not show “his pleas were involuntary to a degree that it would be manifestly unjust to allow his convictions to stand,” or that his CSC II sentences were invalid due to “the imposition of the statutory mandatory LEM requirement.” As a result, he could not “establish the requisite prejudice necessary to warrant relief from judgment and the trial court did not err by denying his motion.”